Excerpt:..... - section 3(e) -- 'hold' does not mean 'possess' -- section does not provide that debtor or small farmer must be in actual possession of land as owner.;the word used in the definition of small farmer is not 'possessed', but the word used is 'holds'. the definition of a 'small farmer' does not
provide that the debtor or the small holder must be in actual possession of the land as owner. the word 'hold' does not mean 'possess'.;on facts, when the sale of seven lands, which were subject to a charge on account of the debt advanced by the society, is void, the debtor will be holding the lands within the meaning of section 3(e) of the karnataka debt relief act. - karnataka municipalities act (22 of 1964), section 72 & karnataka municipalities (guidance of provisions) rules, 1966, rule..........judgment-debtor-1 and another for recovery of money. judgment-debtor-1 contended that he was a small farmer and a person belonging to the weaker sections of the people within the meaning of the karnataka debt relief act and thus the decree debt stood wiped out.3. the lower court held that judgment-debtor 1 was not a person belonging to the weaker sections of the people. but it held that he was a small farmer within the meaning of the karnataka debt relief act and thus it dismissed the execution. hence the revision by the decree holder.4. the decree holder produced the record of rights extracts to show that judgment-debtor-1 held 11 lands. but, on the other hand, judgment-debtor-1 produced a certified copy of the sale deed dated 8-9-1971 to show that 7 lands out of 11 lands regarding.....

Judgment:ORDER

Kulkarni, J.

1. This is a revision by the decree holder against the order dated 2-9-1980 passed by the Munsiff, Sirsi, in Execution Case No. 30 of 1978 holding that judgment debtor-1 is a*CRP No. 2278 of 1981 dated 22nd February 1985debtor within the meaning of the Karnataka Debt Relief Act and thus he dismissed the execution.

2. The decree holder sued out execution against Judgment-Debtor-1 and another for recovery of money. Judgment-Debtor-1 contended that he was a small farmer and a person belonging to the weaker sections of the people within the meaning of the Karnataka Debt Relief Act and thus the decree debt stood wiped out.

3. The lower Court held that Judgment-Debtor 1 was not a person belonging to the weaker sections of the people. But it held that he was a small farmer within the meaning of the Karnataka Debt Relief Act and thus it dismissed the execution. Hence the revision by the decree holder.

4. The decree holder produced the record of rights extracts to show that Judgment-Debtor-1 held 11 lands. But, on the other hand, Judgment-Debtor-1 produced a certified copy of the sale deed dated 8-9-1971 to show that 7 lands out of 11 lands regarding which the decree holder hadproduced record of rights extracts, were no longer in his possession. According to him, he had sold the said 7 items of lands situate in Koligar village and another land situate in Guruvalli village to one Ganapathi Keshav Bhat for aconsideration of Rs. 10,000/-. It is undisputed that if these 7 lands sold by Judgment-Debtor-1 under the said sale deed are taken into consideration, the extent held by him would exceed the statutory limit prescribed under the Karnataka Debt Relief Act. That sale deed itself shows that Judgment-Debtor-1 has mortgaged the said 7 lands in favour of Tattisar Group Co-operative Society and a charge had been created on the said 7 lands. Even the record of rights extracts also show the same. Under Section 33 of the Karnataka Co-operative Societies Act, if the property charged to a Co-operative Society is sold to any other person, then that sale is. void. So as per the principle laid down under Section 33 of the Karnataka Co-operative Societies Act the sale deed executed by Judgment-debtor-1 in respect of the 7 lands is null and void and it does not convey any right, title or interest to the purchaser.

5. The Lower Court held that even assuming that the sale of the said 7 lands is void, there is nothing to show that Judgment-debtor-1 was in possession of the said 7 lands. According to it, the definition of the word 'small farmer' requires that the Judgment-debtor should be in possession of the properties. The word 'small farmer' has been defined in Section 3(e) of the Karnataka Debt Relief Act, 1976, as:-

' 'small farmer' means a person who holds whether as owner, tenant, or mortgagee with possession or partly in one capacity and partly in another not more than one unit of land and who has no income from anysource other than agriculture.'

The word used in the definition of small farmer is not 'possessed', but the word used is 'holds'. It has been laid down by this Court in Rame Gowda v. Sub Divisional Magistrate, Ramanagaram, 1978(2) KLJ 229 that the definition of a small farmer does not provide that the debtor or the small holder must be in actual possession of the land as owner. The word 'hold' does not mean 'possess'. Therefore when the sale of the 7 lands which were subject to achange on account of the debt advanced by the Society is void, the debtor will be holding the lands within the meaning of Section 3(e) of the Karnataka Debt Relief Act. If it is so, then the view of the Court below that the Judgment debtor must actually possess the lands, is not correct. As already stated above, if these 7 lands are taken into consideration, then the limit or the extent of the land held by Judgment debtor-1 would exceed the statutory limit prescribed under the Act. Therefore, under these circum-stances, the Court below erred in holding that Judgment-debtor-1 was a small farmer and the Court below also erred in dismissing the execution.

6. So far as judgment-debtor-l's plea that he also belongs to the weaker sections of the people, is concerned, the same has been rejected by the Court below. I think that finding needs no interference.

7. Thus, in the result, the order passed by the Court below is set aside. The revision is allowed. The execution is restored to file. The Court below should proceed with the execution on merits.